H1B “Master’s Cap” Pitfalls: Cautionary Reminder
21 Feb 2018
With the arrival of fiscal year 2019 (FY19) H1B cap season, foreign nationals and employers should be aware of some important nuances of the H1B advanced-degree exemption, often referred to as the “master’s cap.” Clearly, the 20,000 H1B cap exemptions can be quite valuable for those who qualify. However, mistakenly filing a new petition under the master’s cap for someone who does not actually qualify for this exemption is likely to result in denial or revocation of an approved petition at some point in the future.
School Must be Accredited and Public or Other Nonprofit
There are 20,000 additional H1B numbers (technically, exemptions) available on top of the regular H1B cap limit of 65,000. These additional H1B numbers are available to those who have completed master’s (or higher) degrees from U.S. colleges or universities that meet two specific requirements. The first requirement is that the school must be properly accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. The second requirement is that the school must be a public or other nonprofit institution. If either of these two requirements is not met, the degree does not qualify the individual for the master’s cap exemption.
School Must Be Accredited at Time Degree is Issued
To qualify for the master’s cap, the university must be accredited as of the date the advanced degree is awarded. If a person graduates from a school before it is accredited, the degree cannot be used to qualify for the master’s cap. Conversely, if a school is accredited at the time a student graduates, but subsequently loses its accreditation, this does not impact the student’s eligibility for the master’s cap. This point was confirmed by the U.S. Citizenship and Immigration Services (USCIS) in a policy memo issued in May 2017. See University Must be Accredited When Degree Awarded for Master’s Cap (09.Jun.2017) for more details on this memo.
USCIS Strictly Applying Advanced-Degree Cap Exemptions
The USCIS typically will deny a petition filed improperly against the master’s cap. What’s more, the USCIS tends to apply the rules strictly for determining whether a degree from a particular school satisfies the master’s cap requirements. There was a time when this was not the case. As a result, there are individuals with master’s cap H1B approvals from a few years ago, based on degrees that do not actually meet the legal standards. Some of these individuals have started to encounter problems when requesting H1B status extensions.
Second Chances Unlikely
It is likely an H1B cap applicant will not be able to refile a petition for the upcoming FY19 if there is a mistake in the initial filing. It is vital that the case be properly prepared and only filed as a master’s cap case, if the individual legitimately qualifies.